Karnataka High Court
Smt. Savithramma.T vs The Commissioner Of Police on 7 April, 2017
Author: Ashok B. Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL 2017
PRESENT
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
AND
THE HON'BLE MRS.JUSTICE K.S.MUDAGAL
W.P.(H.C.) No.171 OF 2016
BETWEEN :
Smt.Savithramma T.
W/o.Sri N.Narashimamurthy
@ Narasimha @ C.D.Narasimha,
Aged about 30 years,
R/at No.101, 2nd Cross,
Thunganagara,
Hosahalli Main Road,
Bengaluru - 560 091. ... Petitioner
(By Sri M.R.Nanjunda Gowda, Advocate)
AND:
1. The Commissioner of Police,
Bengaluru City,
Bengaluru - 560 001,
By N.S.Megharikh.
2. The State of Karnataka,
By Under Secretary,
Home Department (Law and Order)
Vidhana Soudha,
Bengaluru - 560 001.
2
3. The Senior Superintendent,
Bengaluru Central Prison,
Bengaluru - 560 001. ...Respondents
(By Sri I.Tharanath Poojary, AGA)
This W.P.(H.C.) is filed under Article 226 of the
Constitution of India praying to declare the detention of
N.Narasimhamurthy @ Narashima @ C.D.Narasimha
S/o.Nagaraju @ Naganna by order No.02/CRM(4)DTN/2016
dated 15.07.2016 (Annexures A and B) passed by respondent
No.1 and approved by the respondent No.2 by order
No.HD/280/SST/2016 dated 17.08.2016 (Annexure-E) as illegal
and void abinitio etc.
This W.P.(H.C.), coming on for orders, this day, ASHOK
B.HINCHIGERI J., made the following:
ORDER
The petitioner, wife of the detenue N.Narasimhamurthy, has called into question the preventive detention order, dated 15.07.2016 (Annexures A and B) passed by the first respondent and the order, dated 17.08.2016 (Annexure-E) passed by the second respondent continuing the said detention order.
2. Sri M.R.Nanjunda Gowda, learned counsel for the petitioner submits that hitherto 14 criminal cases are registered against the detenue and that he is already acquitted in four cases. Ten cases are pending consideration. He asserts that in no criminal case the detenue has suffered the conviction. 3
3. He has raised three specific grounds to attack the impugned orders. Firstly, he submits that the respondents have not furnished the legible copies of the documents relied upon by them for passing the impugned orders. He brings to our notice pages 10, 56, 112, 207, 209 and 212 of the compilation consisting of the copies of the documents relied upon by the respondents for passing the impugned preventive detention orders.
4. He relies on the Hon'ble Supreme Court's decision in the case of MANJIT SINGH GREWAL ALIAS GOGI vs. UNION OF INDIA AND OTHERS reported in 1990 (Supp.) SCC 59 wherein the preventive detention order came to be quashed, as the copies of the documents supplied to the detenue were illegible.
5. He also relies on the Division Bench decision of the Allahabad High Court in the case of GANESH PRASAD KAPOOR vs. STATE OF U.P. AND OTHERS reported in (1986) Crl.L.J. 1607 to advance the submission that on the ground that the detenue has failed to raise the ground of incomplete 4 material earlier, he cannot be precluded from raising this ground as there can be no estoppel against the fundamental rights.
6. He has also relied upon the Delhi High Court's decision in the case of RAKESH KUMAR GUPTA vs. UNION OF INDIA AND OTHERS reported in 1995 Crl.L.J.1048 wherein it is held that the non-supply of legible copies of the relied upon documents is violative of Article 22(5) of the Constitution of India rendering the detention order bad.
7. He also brought to our notice the Division Bench judgment of the Bombay High Court in the case of SIRAJ KHAN vs. L.HIMINGLIANA AND OTHERS reported in 1989 Crl.L.J.392 wherein it is held that if the detenue is not supplied with the legible and complete copies of the documents, it comes in the way of his submitting effective representation to the detaining authority.
8. Secondly, he submits that the bail orders and the bail applications are not placed before the respondent Nos. 1 and 2. He would contend that the impugned orders are vitiated for non- consideration of the relevant materials. He submits that the 5 copies of bail orders and of the bail applications should have been supplied to the detenue also.
9. Relying on the Supreme Court's decision in the case of RUSHIKESH TANAJI BHOITE vs. STATE OF MAHARASHTRA AND OTHERS reported in (2012) 2 SCC 72, he would contend that the non-placing of bail order would vitiate the subjective satisfaction of the detaining authority.
10. Thirdly, he submits that the preventive detention order is passed on the basis of some cases registered against the detenue 10 years ago. He would contend that the impugned orders suffer from the want of proximity. He brings to our notice the Division Bench decision of this Court in the case of SMT.SHYLAMMA vs. THE STATE OF KARNATAKA, DEPARTMENT OF HOME AND OTHERS reported in ILR 2006 Kar.2725 and submits that there is no proximity between the incidents relied upon by the detaining authority and the passing of the impugned detention orders.
11. Sri I.Tharanath Poojary, learned Additional Government Advocate appearing for the respondents submits that 13 criminal cases are registered against the detenue. The detenue and his 6 accomplices are gangsters. He submits that neither before the Government nor before the Advisory Board, the detenue has ever raised the grounds which are now being raised in these proceedings. He would contend that the placing of the bail orders and bail applications before the detaining authority is not a mandatory requirement under the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, (Immoral Traffic Offenders, Slum-grabbers and Video or Audio Pirates) Act, 1985 ('Goonda Act' for short). He submits that the detaining authority has fully applied his mind to all the antecedents of the detenue, perused the records and thereafter passed the detention order. He submits that Annexure-D, dated 15.07.2016 containing the grounds for passing the impugned orders clearly refers to the enlargement of the detenue on bail in certain criminal cases and even refers to the next date of hearing in the pending criminal cases. He submits that there is nexus between the impugned orders and the series of offences committed by the detenue. He submits that the detenue has been continuously committing one after the other heinous acts. He submits that the proximity cannot be conceived on the basis of the gap between the first criminal case and passing of the 7 impugned detention orders, because he continues to commit the crimes posing the threat to the public tranquility.
12. He relies upon the Hon'ble Supreme Court's decision in the case of ABDUL SATHAR IBRAHIM MANIK vs. UNION OF INDIA AND OTHERS reported in (1992) 1 SCC 1. He read out paras 12(3),(5) and (6) from the said reported decision which reads as follows:
"(3) If the detenue has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenue was in actual custody.
................
(5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenue in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in 8 arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22(5) of the Constitution of India. Whether in a given case the detaining authority has casually or passing referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court.
(6) In a case where detenue is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenue."
13. He relies on the Hon'ble Supreme Court's decision in the case of K.VARADHARAJ vs. STATE OF T.N. AND OTHERS reported in (2002) 6 SCC 735. Para 6 read out by him therefrom is extracted hereinbelow:
"6. From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each 9 case. We are in respectful agreement with the view expressed by the abovesaid two judgments which in our opinion are not conflicting."
14. He relies upon the Hon'ble Supreme Court's decision in the case of MST.L.M.S.UMMU SALEEMA vs. SHRI B.B.GUJARAL AND ANOTHER reported in (1981) 3 SCC 317 to advance the submission that the copies of those documents to which there is a casual or passing reference in the impugned order is concerned need not be supplied to the detenue. He also relies on the Apex Court's judgment in the case of UNION OF INDIA AND OTHERS vs. MOHAMMED AHMED IBRAHIM AND OTHERS reported in 1993 Supp. (1) SCC 405 and submits that the extent and nature of illegibility of the document and their effect on the right of representation has to be examined.
15. Relying on the Hon'ble Supreme Court's decision in the case of USHA AGARWAL vs. UNION OF INDIA AND OTHERS reported in (2007) 1 SCC 295, he submits that a document is relevant for considering the case of a person for preventive detention, if it relates to or has the bearing on certain issues. 10
16. Without prejudice to these submissions, he contends that the copies of the documents supplied to the petitioner are legible. He submits that the possibility of producing the xerox copy of the xerox version to show that the copies are illegible cannot be ruled out.
17. The submissions of the learned counsel have received our thoughtful consideration. The following points fall for our consideration:
(i) Whether the impugned orders are liable to be quashed on the ground that some of the copies of the documents supplied to the detenue are illegible?
(ii) Whether the non-production of the bail applications and bail orders before the detaining authority renders the impugned orders bad?
(iii) Whether the impugned orders suffer from want of proximity?
In re question No.1:
18. At the very outset it has to be noticed that the detenue has not raised the objection regarding the illegibility of the copies either before the Government or before the Advisory Board. Even acceding to the submission of the petitioner that the 11 objection regarding illegibility of the documents can be permitted to be raised for the first time in the writ petition, the question is whether the impugned orders can be invalidated on that ground? The compilation in support of the detention order consists of 513 pages. On the ground that some words or lines or paragraphs or pages are lacking in legibility, we are afraid the impugned orders cannot be quashed unless the detenue shows that he has suffered material prejudice on account of it. It is not demonstrated before us as to how the lack of legibility in some documents has come in the way of the detenue giving meaningful representation to the Government.
19. In saying so, we are fortified by the Apex Court's judgment in the case of MST.L.M.S.UMMU SALEEMA (SUPRA). In the said case the Hon'ble Supreme Court has emphasized the need to examine the extent and nature of illegalities and evaluate their effect on the right of representation. Further, the Hon'ble Supreme Court has also held as follows in the above case:
"...............It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not 12 an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenue to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention."
20. In the case of USHA AGARWAL (SUPRA) the Apex Court observes that the document would be relevant for the purposes of preventive detention, if it relates to or has bearing on the prejudicial activity in question. In para 19 of its decision in the case of G.REDDEIAH vs. GOVERNMENT OF ANDHRA PRADESH AND ANOTHER reported in (2012) 2 SCC 389, the Supreme Court has this to say:
"19. As pointed out above, the said objection was not raised anywhere. It is also not in dispute that the detenue was given adequate opportunity of hearing before the Advisory Board and all his grievances were addressed to by the Board and submitted its report. The Government, on going through the entire materials including the report of 13 the Advisory Board as well as the representation of the detenue, considering the gravity of the offence alleged against him and his habitually, confirmed the order of detention."
21. The Division Bench of this Court in the case of SMT. SANGEETHA vs. STATE OF KARNATAKA reported in ILR 2015 Kar.92 has held that on the ground of one or two words not being as legible as they should have been, the impugned detention orders cannot be quashed.
22. Thus, as (i) the detenue has not shown that he has suffered prejudice on account of the illegibility of some pages (out of 513 pages), (ii) it is not shown that the impugned detention orders are based on those illegible pages and (iii) as the detenue has not raised before the Government or the Advisory Board the objection over the illegibility of the pages in question, we answer question No.1 in the negative.
In re.question No.2:
23. The reliance of the petitioner's side on the Hon'ble Supreme Court's RUSHIKESH TANAJI BHOITE (SUPRA) and the decision of the Division Bench of this Court in the case of R.LATHA (SUPRA) does not come to the rescue of the 14 petitioner or the detenue in any way. The judgment is a good law for what it decides. Both the decisions were rendered in the factual matrix where the detenue was enlarged on bail but by virtue of the preventive detention order he was taken into custody. But in the instant case the detenue was in judicial custody, when the impugned detention orders came to be passed.
24. As held by the Apex Court in the case of ABDUL SATHAR IBRAHIM MANIK (SUPRA) if the detenue has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority, it does not amount to suppression of relevant material. When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenue in making an effective representation. In a case where detenue is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily consider them. It is also helpful to refer to the Hon'ble Supreme Court's decision in the case of K.VARADARAJ (SUPRA). Para 6 of the said decision reads as follows: 15
"6. From the above observations, it is clear that placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case. We are in respectful agreement with the view expressed by the abovesaid two judgments which in our opinion are not conflicting."
25. Considering the preponderance of judicial view and as the detenue was in judicial custody at the time of the passing of the impugned detention orders, we answer the second question in the negative.
In re.question No.3:
26. Our perusal of Annexure-D, dated 15.07.2016 containing the grounds of detention reveals that the detenue and his associates were moving in public places with knives, swords and other lethal weapons creating fear in the minds of citizens and law abiding citizens. It states that he has committed offences like assault, murder, attempt to murder, robbery, dacoity and disturbed public peace and tranquility. It also refers to registration of a number of criminal cases against the detenue and some criminal cases culminating in the acquittal of the detenue. As the witnesses were frightened, they either turned 16 hostile or compromised the matter. The registration of the criminal cases are in the years 2006, 2008, 2011, 2103, 2014 and 2016. The continued, relentless activities of the detenue are such that it cannot be said that there is no nexus between the criminal cases registered and the passing of the impugned orders. In one of the earliest cases falling for consideration before the Apex Court in the case of the PRAKASH CHANDRA MEHTA vs. COMMISSIONER AND SECRETARY, GOVERNMENT OF KERALA AND OTHERS reported in AIR 1986 SC 687, in the matter of preventive detention, it is held that the detention order is not vitiated on the ground of non- application of mind, if subjective satisfaction is arrived at on the basis of other independent and objective factors enumerated in the grounds.
27. The detaining authority has clearly stated that on the enlargement of bail in some criminal cases, the detenue resorted to threatening the witnesses and making them hostile or to compromise the matter. It means that the detenue did not mend his ways even on getting himself released on bail. 17
28. The perusal of the material placed on record shows that the detaining authority was conscious of all the relevant aspects of the matter and passed the detention orders to prevent the detenue from committing the perilous activities in future.
29. As held by the Division Bench in the case of Smt.SANGEETA (SUPRA), this Court would neither act as a Court of Appeal in a petition filed challenging the validity of the detention order nor it would put itself in the position of the detaining authority for satisfying itself of the adequacy of the materials. The power to issue a detention order depends on how the detaining authority processes, perceives and evaluates the threat to the maintenance of public order. Its satisfaction is purely subjective and excludes the judicial enquiry into the sufficiency of the grounds to justify the detention. We are not persuaded to invalidate the detention orders on the ground that the first criminal case was registered 11 years ago, because there is nexus with the purpose for which the detention order is made. The third question is answered accordingly to the effect that the grounds of detention are proximate and pertinent. 18
30. Thus as the impugned orders are invulnerable, we dismiss this petition. No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Cm/-